Abstract
The argument in support of the rights of sexual minorities in sub-Saharan Africa should be secondary to the argument for the decriminalization of consensual same-sex intimacy. So long as sexual minorities are classed as criminals and deviants, it might be difficult to champion sexual minority rights as a human right. This chapter adopts an approach that queries the criminalization of same-sex sexual conduct among consenting adults in private. The chapter discusses crime from the perspective of the criminal law theories of harm, morality, and paternalism. It is argued in the chapter that because states determine what rights are guaranteed within their jurisdiction, if states can rethink what conduct of behavior should be criminalized, then states might guarantee sexual minority rights as human rights. The chapter recommends repealing laws criminalizing consensual same-sex sexual conduct among adults in the states in sub-Saharan Africa.
TopAre Sexual Minority Rights Human Rights?
The question whether sexual minorities’ rights is human rights has been the subject of academic debates for a long time (Corrêa & Parker, 2004). In most parts of sub-Saharan Africa, it is viewed that anything having to do with the rights of LGGBTI persons is a Western idea and foreign to the African people (Izugbara, et al., 2020). For example, although a country like Zimbabwe is a signatory to the International Covenant on Civil and Political Rights (ICCPR) with a pledge to protect all persons from discrimination, Zimbabwe, like several other sub-Saharan African countries with colonial ties to Britain, criminalizes consensual same sex sexual conduct among adults in private (Mitteslstaedt, 2008). In recent times, African political leaders have resisted considering ‘gay rights’ as human rights even at the expense of being denied foreign aid (Seckinelgin, 2018).
Despite the rise of emerging proponents of rights of the LGBTI community in Africa, countries like Nigeria, Ghana, Kenya, and Uganda do not consider sexual orientation as a basis for human rights (Arimoro, 2020) (Arimoro, 2021). It is therefore essential to examine the concept of liberty and freedom in the light of arguments in support of the decriminalization of same sex sexual activity among consenting adults in private. Also, it has been argued that a liberal approach should be adopted when it comes to addressing human rights issues (Adenitire, 2017).
Key Terms in this Chapter
LGBT: The terms lesbian, gay, bisexual, and transgender (LGBT) describe distinct groups within the gay culture.
Criminal Law: This is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to property.
Crime: A crime is an illegal act which usually attracts sanction from the State.
Human Rights: These are standards that recognise and protect the dignity of all human beings. Human rights govern how individual human beings live in society and with each other, as well as their relationship with the State.
Same-Sex: Same-sex refers to a relationship between persons of the same sex or gender. For example, a relationship between two men or between two women.
Sub-Saharan Africa: This term is used to describe the geographical area of the continent of Africa that lies south of the Sahara. According to the United Nations, it consists of all African countries and territories that are fully or partially south of the Sahara.
Same-Sex Sexual Conduct: A behaviour that is usually involves intimacy or sexual acts between persons of the same gender.